Important changes to how local authorities should decide the rate of financial support provided to NRPF families under the Children Act 1989

C T M & U v LB Southwark, Court of Appeal, 12.7.2016

The Court of Appeal has held that support under s.17 Children Act 1989 for families without recourse to public funds should not be fixed inflexibly to other forms of statutory support and assessments should be in line with the statutory guidance produced under the CA 1989: ultimately, the quality of the assessment is what matters in terms of lawfulness.  A local authority may cross-check its provision to other statutory support.

The Appellants were a family from abroad without recourse to public funds ("NRPF") who were supported by Southwark pending an appeal against refusal of leave to remain. The challenge was to the amount of financial support given to the family.

Southwark did not have a written policy as regards support for NRPF families and carried out "bespoke" assessments of need which included analysis of the family's expenditure and children's welfare. The grounds of appeal addressed:

(a) Whether Southwark had an unlawful policy or practice of setting financial support to at the level of child benefit ;

(b) Whether after the decision of the Administrative Court in R (PO & Ors) v Newham London Borough Council [2014] EWHC 2561 (Admin) the respondent had an unlawful policy or practice of setting financial support  at the level of payments which would have been made to asylum seekers or failed asylum seekers by the Secretary of State under sections 4 and 95 of the Immigration and Asylum Act 1999

(c) Whether Southwark breached the family's article 8 ECHR rights because it provided them with financial support at a level less than that which it knew was necessary to prevent breach and, if so, are the appellants entitled to damages in respect of the breach?

The CA dismissed all grounds. It held that:

• it would be difficult to have separate policies for different classes of child in need: assessments should be carried out by reference to the statutory guidance, at the date of these decisions the Framework for the Assessment of Children in Need and their Families, and now Working Together to Safeguard Children  [17-18].
• There is no necessary link between section 17 CA 1989 payments and those made under any other statutory scheme; quite the contrary.
• The starting point for a decision has to be an analysis of all appropriate evidential factors. Cross-checking to other statutory benefits is permissible [27], but must not constrain the decision maker's obligation to have regard to the impact on the individual child's welfare [21]. The cross-check accords with common sense [41].
• Benchmarking support to any fixed rate would be likely to be an irrational fetter on the local authority's discretion if it were not done in the context of an appropriate evidential exercise [29-30]. But that had not occurred here, as there had been bespoke assessments of need.
• The article 8 claim damages claim failed, as Southwark's decisions fell well within the margin of appreciation enjoyed by the State.
• Per Moore Bick LJ, VP, "a level of support considered adequate simply to avoid destitution in the case of a failed asylum-seeker is unlikely to be sufficient to safeguard and promote the welfare of a child in need and by extension the essential needs of the parent on whom the child depends for care" [44]. However, "Ultimately what matters is whether the assessment when completed adequately recognises the needs of the particular child".

The headline from this case is that support for NRPF families should not be fixed inflexibly to other forms of statutory support and assessments should be in line with the statutory guidance produced under the CA 1989. A cross-check to other statutory support rates is permissible once there has been an assessment. It is likely to be the quality of assessment which is determinative of lawfulness rather than the rate of support.

Fenella Morris QC and Sian Davies of 39 Essex Chambers represented the London Borough of Southwark.

The applications to admit fresh evidence and to rely on an additional ground of appeal were allowed but the appeal dismissed.

To view the full judgment, please click here.